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ISLAMABAD, May 28: For the first time in Pakistan’s parliamentary history, a ruling by a National Assembly speaker has come under attack — in the Supreme Court. On Saturday, Pakistan Muslim League-Nawaz (PML-N) member Khawaja Muhammad Asif and Pakistan Tehrik-i-Insaaf (PTI) chief Imran Khan challenged in the court National Assembly Speaker Dr Fehmida Mirza’s May 24 ruling that saved Prime Minister Yousuf Raza Gilani from being disqualified as member of the lower house of parliament.

Both the petitioners claimed that Article 184(3) of the Constitution had been breached by her ruling. The article ensures that the Supreme Court has “original jurisdiction” -- i.e. the power to hear the original case, rather than merely review an already-existing decision.

Khawaja Asif requested the apex court to declare Dr Mirza’s ruling unlawful and of no legal effect and insisted that she had wrongly assumed responsibility for something outside of her jurisdiction.

Imran Khan went a step further by asking the court to declare the ruling a violation of fundamental rights of the court which upheld both access to justice and independence of the judiciary. He also sought a court order for the Election Commission of Pakistan (ECP) to rule on the question of the prime minister’s disqualification.

Historic petitions
“This [the petition] is a case of ‘first impression’ [a legal case where there is no binding authority on the matter presented since there is talk of a completely original issue of law set forth in front of the courts]. Therefore, it will be prudent if the Supreme Court call experienced lawyers as amicus curiae [friend of the court] to reach a definitive answer on this question,” said Advocate Muhammad Waqar Rana, who has drafted the PTI chief's petition and is assistant to senior counsel Hamid Khan.

Mr Rana pointed out that such petitions had never been seen before in Pakistan’s judicial history.

According to a senior politician with four decades of parliamentary association and deep knowledge of the institution, parliamentarians usually refrain from questioning the office of the speaker of the National Assembly by filing petitions against it, or dragging it through litigation.

“But now these kinds of petitions are being filed because things have become so politicised. I really fear for the day when the speaker will be called on during a proceeding. That would be in bad taste,” he said.

Former law minister Dr Sher Afgan Niazi felt the petitions had been filed because Dr Mirza had ignored or deviated from the requirements of the National Assembly’s Rules of Procedure and Conduct of Business 2007 Rule 16. Rule 16 asked the speaker to refer the question of a member’s disqualification -- if raised in writing -- to the chief election commissioner within 30 days.

Advocate Chaudhry Faisal Hussain said the speaker’s ruling could be challenged in a high court under Article 199 of the Constitution through the submission of a writ of mandamus (seeking orders against some individual to perform statutory duty). But he did not feel that the ruling could be challenged in the Supreme Court by referring to the fundamental rights of any individual.

“Disqualification of a member of the lower house cannot be held as breach of fundamental right of any citizen,” he explained.

Mr Hussain said that a crucial question was whether the speaker could be made party to any litigation, especially in view of a bar under Article 69 of the Constitution, where no institution could guide the speaker in his or her role as a custodian of the rights of the members of the house. In his petition, Khawaja Asif, however, emphasises the prime minister rather than the speaker and points out that he will argue the case in person. He says Prime Minister Gilani is a convicted and disqualified member who continues to decide the fate and future of the people. His rule is, therefore, disgraceful and an offence to the rights of the people to life, dignity, honour and pride. When a disqualified member of the house continues to act as prime minister, he is subverting the Constitution and is culpable under Article 6 -- treason. “We want to make the speaker irrelevant. We do not believe that there is any more room for any further interpretation of her ruling,” Khawaja Asif said.

In his petition, Imran Khan, however, argues that the speaker has misconstrued her power and role. “She is bound to remain within the confines of the powers vested in her office by the Constitution and cannot transgress such powers or authority,” he said.

As a member of the legislature/a coordinate branch, the speaker had no constitutional authority to sit in appeal over the decision of the apex court, the petition contended, adding that the ruling was passed on extraneous consideration and by not taking circumstances relevant for the question of the prime minister’s disqualification into account.

The petition insisted that the ECP was the final authority to determine and decide whether the member had become disqualified upon a reference from the speaker.